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Case Significance

A clear application of res judicata and the rule against relitigation: a party who has lost after a full trial and is appealing cannot commence a parallel action on the same matter in another court, and such a suit will be struck out as an abuse of process under Order 18 rule 19(1)(d).

This High Court decision at Shah Alam concerns an application to strike out a suit as barred by res judicata and as an abuse of the process of the court. The plaintiffs had earlier been the defendants in a separate action, heard in the High Court at Kuala Lumpur, which concerned the same glove transaction that formed the basis of the present claim. After a full trial in that earlier action, judgment had been entered against them, the trial judge finding that they had themselves engaged in fraudulent misrepresentation and conspiracy and drawing adverse inferences under section 114(g) of the Evidence Act 1950 for their failure to call or join the parties who were now the defendants. The plaintiffs had appealed against that decision, and that appeal remained pending. While it was still pending, they commenced the present suit, in a different High Court, against those parties. The applicant defendants moved to strike the suit out. The court held that the doctrine of res judicata extends not only to issues that were actually raised in the earlier proceedings but also to those which ought to have been raised, and that a litigant is entitled to one full and fair hearing, not multiple attempts under different labels. It found this to be a plain and obvious case in which the claim was unsustainable, caught by res judicata and amounting to an abuse of process within Order 18 rule 19(1)(d) of the Rules of Court 2012, and observed that the plaintiffs' proper course was to pursue their pending appeal in the earlier suit rather than to open a parallel action elsewhere. The court accordingly allowed the application and struck out the suit against those defendants in its entirety, with costs fixed at RM5,000. The judgment is a clear application of res judicata and the rule against relitigating matters that have been, or ought to have been, resolved in earlier proceedings.